Episode 5

How to Prepare your Witness for Cross Examination

Preparation is key in cross-examination

Steps to prepare a foreign witness

In preparing a foreign witnesses, emphasis should be on a meticulous affidavit, controversial matters addressed, confirmation of the language that the evidence is given in, and Australian courtroom familiarisation; this will ensure the witness is prepared for cross-examination.

The value that a well-prepared witness can bring to a case makes it worthwhile investing that time in the days leading up to the hearing.

In this episode, Fiona discusses the 6 steps she undertakes to help a foreign witnesses feel more comfortable with the Australian process.

Video script

This week I am going to talk to you about how to prepare a foreign witness for cross examination. Of course, much of this applies to any witness, but there are some specific things I do with foreign witnesses to help them to feel more comfortable with the Australian process.

  1. The first and best preparation for a witness is to invest the time to get the detail of their affidavit correct. It makes such a difference to a witness when their first affidavit has carefully dealt with all relevant matters. In particular it needs to deal with any controversial matters that the witness is likely to be cross examined on. This is because an affidavit is the best chance the witness will get to state their version or explanation of a matter in their own words. Cross examination is not the place to attempt to do that and neither is evidence in reply or re-examination.
  2. When dealing with a foreign witness whose first language is not English, you need to decide what language their evidence should be in. It is important to remember that preparing an affidavit in English is a very different matter from being cross examined in English. If a witness is not going to be able to cope with cross examination in English, then a decision needs to be made from the outset to give their evidence in their native language. Getting the best outcome from translators and interpreters is a whole separate topic to be saved for another day, save to say, the language in which a foreign witness gives evidence is a forensic decision that should be given careful consideration at the outset as it will have significant implications for their cross examination down the track.
  3. I spend time with each of my witnesses (foreign or local) before they give evidence to explain the best way to answer questions under cross examination. I have 10 golden rules – most witnesses find this really beneficial, especially when you allow the extra time needed to help them understand why these guidelines will help them in cross examination.
  4. I spend time with my witnesses going through the general topic areas they can expect will be covered in cross examination. This is particularly important where the witness is giving controversial evidence on an important fact. I make sure they have the opportunity to ask all of the questions they have about their evidence and the process so that they feel comfortable about what will happen and what they can expect.
  5. Because a witness is not allowed to sit in court during the hearing until they have given evidence, I take every foreign witness who comes to Australia to give evidence in one of my cases to court to watch a hearing in action. This is so that they know where to sit, how to address the Judge, who the people are in the court room, what to do when they are asked to swear an oath or make an affirmation. It makes the whole process less daunting and gives them the benefit of some familiarity with our system to lessen the power imbalance at least a little. I try to find a case where there is a witness being cross-examined and we go together and sit and watch the cross-examination after I have explained to them the guidelines for giving evidence to them so they can see it in action. We then spend some time discussing what happened afterwards. I always hope that I will find a really terrible witness who is breaking all the rules so that they can see why the rules work so well.
  6. Once I have done all these things, I send them away to spend time making sure they have read and re-read their affidavit and the documents attached to it so they are completely familiar with it and comfortable with it.

I am often surprised by how little time is spent preparing witnesses for cross-examination and how often it is left until the hour before they are about to enter the witness box. It’s actually very unfair on a witness to do that. They need time to absorb the information and think about it. And the time to do that is not an hour before they give evidence. It only adds to their nerves. The value that a well-prepared witness can bring to a case makes it worth investing that time in the days leading up to the hearing so that your witness has time to process and digest everything and come back to you with any questions.

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Fiona Henderson

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